Scholar/Authors Discuss Their Books on Preemption, Part Three
Editor’s Note: Following is the third of four posts focused on federal preemption issues and featuring CPR Member Scholars Thomas McGarity and William Buzbee. In December, both published books on the issue. (The first blog post in the series includes some background on the issue. The second discussed the very real impact the outcome of the debate has on individuals.) McGarity’s book is The Preemption War: When Federal Bureaucracies Trump Local Juries. Buzbee’s is Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question, and features chapter contributions from 15 experts, including Buzbee and McGarity, as well as a number of other CPR Member Scholars.
We asked Professors McGarity and Buzbee to discuss the books and the issue, and here’s the third installment of that conversation:
What's the outlook on preemption? Do we think the Obama Administration will take a different view than the Bush Administration, or will it even notice? And what do we think of prospects in the courts? Is there a legislative fix, or is that unrealistic?
Professor McGarity: I am cautiously optimistic about the prospects for undoing some of the worst Bush Administration preemption actions in the next few …
From the airspace over the Indonesian gold mine Batu Hijau, it might seem as though the mythical King Midas has been resurrected in a modern, and twisted, form. Where King Midas of Greek lore was granted the touch of gold, the modern King Midas assumes the form of a global mining company that, in a myopic and endless search for gold, turns everything it touches into a dull, deserted, and toxic wasteland.
The National Geographic’s January issue investigates the modern gold rush, undertaken not by pioneers headed out to the North American west but by thousands of individuals in mostly developing countries, hoping to eke out a better existence. With the current financial market in shambles, investors are turning to gold as a safe investment, driving up prices and exacerbating the frenetic pursuit. In 2007, India purchased 20 per cent of the world gold market at …
Both versions of the economic stimulus package – that passed by the House and by the Senate – include funding for the National Park Service. The bill the House passed last month would allocate $1.7 billion to the National Park Service for “projects to address critical deferred maintenance needs within the National Park System, including roads, bridges and trails,” operation of the National Park System, and for “projects related to the preservation and repair of historical and cultural resources” in the parks. The bill passed by the Senate includes $747 million for the Park Service to use for operation and construction, after $55 million for historic preservation in the parks was cut from a previous version of the bill as part of a compromise amendment.
The discrepancy in the amount of funding will have to be revisited in conference committee, but whether the ultimate amount is $1.7 …
We’ve written a great deal about Cass Sunstein, the Harvard law professor who is expected to get the nod to be the “regulatory czar” for the Obama Administration. In a nutshell, our concern is that Sunstein will stifle the efforts of health, safety, and environmental protection agencies to struggle to their feet after eight long years of evisceration by the Bush Administration’s regulatory czars, John Graham, and his protégé, Susan Dudley.
But, we got to thinking, just because the 30-year tradition of regulatory czars is to kill regulations, leaving people to fend for themselves in the “free” market, should not mean that regulation-killing is the only thing in the job description. What if “regulatory czar” was the person ultimately responsible for making sure the Executive Branch produces good and needed regulations, cracking the whip to make sure we had rules to make sure kids don …
About thirty miles from my front door, heavy barges are dumping rocks into Louisiana's Mississippi River-Gulf Outlet (MRGO), hoping to permanently plug the de-commissioned shipping channel before the end of the next hurricane season. It's a big plug. The New Orleans Times-Picayune reports that the structure will weigh 430,000 tons, "with a base 450 feet wide, tapering to 12 feet wide at the top." The rock wall "will jut 7 feet from the water's surface and be 950 feet long. It will cover 10 acres of the channel bottom." The MRGO--or as locals say, "Mr. Go"-- opened some 45 years ago as a shipping shortcut – sort of like a highway bypass that, in this case, allows commercial river barges to avoid a winding part of the Mississippi and instead zip straight to New Orleans. Activists have been trying to close it down for …
One logical response to the constant news of the economic recession is cutting back on discretionary purchases and developing a household budget. That is, if we know that times are tough and that we may encounter difficulties sustaining the lifestyle we’ve grown accustomed to, we take stock of our circumstances and plan for the future. We look at our current income and expenses, project our future income as best as we are able, and adjust future expenses in the budget to match future income.
What if, instead, in the face of all the economic indicators that tough times are ahead, we stuck our heads in the sand, continued spending as always (or even increased spending) and hoped for the best? Most would probably agree that at best, it would seem a risky path to tread.
And yet, that’s the path we’ve chosen to take …
More evidence that EPA is starting to find its bearings after eight years of hibernation: in an interim report on the year-old Nanoscale Materials Stewardship Program, EPA admits that asking companies who work on nanomaterials to voluntarily conduct and disclose research on health and environmental hazards isn’t producing much useful information. As a result, the agency is going to start considering how to use its powers under the Toxic Substances Control Act to require data submission.
The Nanoscale Materials Stewardship Program “was developed to help provide a firmer scientific foundation for regulatory decisions by encouraging submission and development of information for nanoscale materials.” It is comprised of two parts: the Basic Program (which asks companies to voluntarily report any information they have about the nanomaterials with which they work); and the In-Depth Program (which asks for volunteer companies to sponsor research into the health and environmental …
Observers concerned with the current dysfunctional state of the U.S. regulatory system will be letting out a collective sigh of relief following the publication of Executive Order 13497. Among other things, this Order officially revokes the controversial Executive Order 13422, issued during George W. Bush Administration.
Issued in 2007, Executive Order 13422 amended President Clinton’s September 1993 Executive Order 12866, which established an institutional framework for centralized regulatory review. Generally speaking, under this framework, the Office of Information and Regulatory Affairs (OIRA)—an obscure but influential bureau in the White House Office of Management and Budget (OMB)—is authorized to review all major federal regulations and to do so through the lens of cost-benefit analysis.
Since its original publication, Executive Order 13422 has been criticized by many environmental, public health, and safety advocates, CPR Member Scholars among them, for creating an unnecessary barrier to the …
Tarlock and Doremus are co-authors of Water War in the Klamath Basin: Macho Law, Combat Biology, and Dirty Politics, published by Island Press in 2008.
Last week, the Oregon Supreme Court agreed to decide whether irrigators in the Klamath Basin "own" water delivered by the federal Klamath Reclamation Project. This latest development is one more twist in an ongoing property rights case that illustrates both how difficult it can be to determine who holds precisely what rights in western water and how property rights claims, even spurious ones, can frustrate ecosystem restoration efforts.
Usually, claims of ownership are made to recover a resource from someone else. But that's not the issue here. The United States agrees that when the Project has water available it must deliver that water to these irrigators rather than to anyone else. But the irrigators want more than that. They want the United …
On January 21, 2009, President Obama issued a Presidential Memorandum that I’m hopeful will be the start of undoing much of the excessive secrecy practiced by the previous administration. The memorandum, established that the Freedom of Information Act (FOIA) “should be administered with a clear presumption: In the face of doubt, openness prevails.”
A recent CPR report, By the Stroke of the Pen: Seven Executive Orders to Launch the Obama Agenda, had recommended that President Obama take this exact step. The report also recommends additional actions that would undo other policies adopted by the Bush administration that made government less transparent. Another Presidential Memorandum, Transparency and Open Government, sets the stage for additional steps to be taken, although it does not commit the administration to adopt any specific policies to foster more transparency.
While Congress created exemptions to FOIA disclosure, it also for the most part …
